GUMAN MAL LODHA, J. - (1.) THIS is a typical case where a piece of land which is alleged to be part of the public street in the city of Jodhpur was sold by allotment by the Allotment Committee of the Municipal Council, Jodhpur. The most curious aspect of the case is that this allotment was done if at all it was done in such a manner which raised several questions about its genuineness. In view of the above two salient features of the case, namely, the land being alleged to be part of public street and the allotment being of alleged suspicious nature I have heard the second appeal at length and perused the documents and evidence shown to me by the learned counsel for the parties.
(2.) THE brief facts of the case are that: The plaintiff -appellant filed a suit for permanent injunction against the defendant -respondent Narpat Karan. It was alleged that the house of the plaintiff and respondent No. 1 are situated inside Siwanchi Gate, Jodhpur. There is an open gali in between them which is a Khalsa land which has been used for ingress and egress. Portion ABCD marked in the site plan annexed to the plaint was secretly allotted in the name of the defendant Narpatkaran by the Municipality under collusion. The plaintiff made efforts to get it cancelled but he could not succeed. It is alleged in the plaint that the allotment was refused on 30 -7 -1960 but later on some members of the Municipal Committee in collusion with the defendant got the land allotted and granted permission to make construction thereon. The plaintiff's case is that if the constructions are raised the carts and trucks would not be able to reach the plaintiff's four Kotharies that exist there for keeping his grains etc. The defendant's has collected the material for construction so the plaintiff filed the suit. Defendant Narpatkaran has contested the suit alleging that the allotment in his name was not illegal. The land in question was allotted to him by majority of votes and in accordance with the provisions of the Municipalities Act. He has further alleged that the plaintiff had no right to object the allotment and no damages are caused to him by construction over it as 14' wide land is already left for coming and going to the plaintiff's property. Plaintiff's Kotharies are not used for storing grains etc. No damage is caused to plaintiff in any manner. It is also alleged that plaintiff's suit is not maintainable unless the allotment is set aside. Defendant No. 2 Municipality also contested the suit on the same ground. On the pleadings of both the parties, the following issues were framed by the lower court: (1) ... ... ...used as a passage in between the house of the plaintiff and defendant No. 1 ? (P). (2) Whether four 'Kothas' of Dhan of the plaintiff are situated in this land, and whether the plaintiff has been using this land peaceably and without any interference and what is its effect on the suit ?(P); (3) (a) Why the allotment order dated 30 -7 -1960 is ineffective ?(P); (b) How this court has power to inquire into and decide matter (P). (4) How the plaintiff is entitled to the grant of a permanent injunction against the defendant for restraining him from raising any construction on ABCD land ? (P); (5) Whether the value of this land is Rs. 500/ - and the plaintiff ought to pay court fee on Rs. 500/ - ? (P); (6) Whether the plaintiff has made some alteration in the suit previously instituted by him which was withdrawn by him and as such, this suit is liable to be dismissed ? (P); (7) Whether this suit is not maintainable till the time, the plaintiff gets a declaration of his rights mentioned in para 5 of his plaint from a competent Court ? (8) Relief?
(3.) AFTER recording the evidence and hearing the parties the Munsif dismissed the plaintiff's suit and the plaintiff went in appeal. The learned appellate court disposed of appeal on 14 -5 -1966 but 2nd appeal was preferred to the Hon'ble High Court and the appeal was remanded to elaborately discuss the evidence regarding two material questions: (1) Whether it has been established from the evidence that the public had a right to use the lane including the land in dispute ? (2) Whether the land ABCD marked on the plan attached with the plaint had been allotted by the Allotment Committee of the Municipal Council, Jodhpur in favour of the defendant appellant ? The Hon'ble High Court has observed that the court yet has to consider the evidence led by either side and then decide whether the majority of Members had allotted the land to the defendent or its allotment was refused.;